LETTER OF BARBARA COMSTOCK, DIRECTOR OF PUBLIC AFFAIRS,
TO THE EDITOR OF TIME MAGAZINE:

To the Editor:

I write in response to the Time magazine article of May 12, 2003 entitled,
“The War Comes Back Home.” The piece included a number of inaccuracies as
described below:

TIME: "What is allowed: Immigrants with no terrorist links can be detained
indefinitely."

REALITY: False. The immigrants in question were aliens in the country
illegally. Illegal aliens have no right to remain in the country, or to walk
free during removal proceedings. Currently, there are approximately 400,000
illegal aliens in the U.S. who absconded after being ordered deported, and an
estimated 8 million others in the country illegally. If these aliens or others
who are illegally in the country are questioned or stopped for an
investigative purpose, they may be detained. The Supreme Court recognized more
than a century ago in Wong Wing v. United States that illegal aliens can be
detained until they are deported. Indeed, in 1996 Congress saw that criminal
aliens were being released in large numbers only to commit more crimes and
passed a statute making detention of criminal aliens mandatory -- a statute
that was held to be constitutional by the Supreme Court in April in Demore v.
Kim. As the Justice Department Inspector General reported in February, there
is a dramatic difference in the percentage of aliens who are successfully
deported when they are detained (94%) versus when they are not detained (13%).
Since only a handful of these approximately 750 detainees are still detained
in connection with active investigations, the assertion that they are being
detained “indefinitely” is unsupported by facts.

TIME: "Thousands were jailed and then let go. Only a few have been
charged."

REALITY: False. As your own article acknowledges, "about 750 foreign
nationals" were detained. "Thousands" would imply two or three thousand for
which there is no basis in fact. All were in the country illegally, and all
were charged with immigration and/or criminal charges. In addition, most of
them -- approximately 500 to date -- have been deported, not "let go" or
"released." That an alien was deported rather than prosecuted does not mean
that the alien had no knowledge of or connection to terrorism. In many cases,
the best course of action to protect national security may have been to remove
potentially dangerous individuals from the country and ensure that they could
not return. In other cases, an individual may have been deported on grounds
seemingly unrelated to terrorism, if the assertion of specific terrorism
charges could have compromised ongoing investigations or sensitive
intelligence matters.

TIME: “What they can do: If you are suspected of terrorist links, law
enforcement can access your records, conduct wiretaps and electronic
surveillance, search and seize private property and make secret arrests - all
without a warrant.”

REALITY: False. The federal government must obtain a court order to
conduct electronic surveillance and/or to search and seize private property.
If the matter concerns national security, the government obtains this court
order from the FISA court after demonstrating, through a showing of probable
cause, that the subject of the surveillance or search is a foreign power or an
agent of a foreign power -- e.g., that he “knowingly engages” in "sabotage or
international terrorism," or is preparing to do so, on behalf of an
international terrorist group. Because "international terrorism" is defined to
require conduct that violates U.S. criminal law -- or would violate U.S. law
if committed in this country -- the showing required to wiretap a U.S. citizen
under FISA's terrorism provisions is actually more demanding than under
ordinary criminal terrorism laws. Moreover, specially created oversight
committees of both Houses of Congress have been given authority to conduct
regular and extensive oversight of the government's use of FISA.

TIME: “The war on terrorism may be launching a legal revolution in America.
The changes pose these questions: How necessary are some of the reforms? Have
John Ashcroft and the Justice Department unraveled constitutional protections
in trying to ensure our safety?”

REALITY: Time and again, the Department has successfully defended legal
challenges including:

Registration and detention of high-risk aliens who have violated immigration
laws - SUSTAINED

If the story was going to talk about a "legal revolution," would it be too
unreasonable to expect a factual acknowledgement and discussion of the actual
outcome of the legal challenges to date in this "legal revolution?" All of
this information was both publicly available and provided in detail to
reporters covering the Department. The only reference to this overwhelmingly
successful record of the Department in court was a perfunctory sentence near
the end of the story: “In the vast majority of terrorism cases, judges have
sided with the government against the objections of prisoners or their
counsel.” Furthermore, the article quotes an Arcata, California city council
member, David Meserve, as if he were a constitutional authority saying, “The
Patriot Act is unconstitutional.” In fact, no provision of the Patriot Act has
been held unconstitutional by any court in the country. The Patriot Act was
voted on 98-1 in the Senate and House of Representatives voted 357-66 to
approve it.

TIME: “Time and again, people rounded up after 9/11 have not been permitted
to talk to lawyers. Civil libertarians are especially uneasy about the legal
no man’s land at the U.S. naval base at Guantanamo Bay, Cuba where more than
600 captives from the war in Afghanistan are still being held and have not
been accorded prisoner-of-war status.”

REALITY: First, people were not “rounded up” after 9/11. FBI
investigators conducted standard investigatory procedures in areas where the
19 hijackers had lived and worked. They spoke with their family, friends,
associates, and others who had some contact with them. They investigated tens
of thousands of tips from the public. In the course of this investigation when
the FBI encountered individuals who were in the country illegally, such
individuals were detained under the law. Second, these individuals were
provided access to lawyers - as evidenced by some of the lawyers you quoted in
your own article. Those who could not afford a lawyer were given lists of
lawyers who could provide free legal services. In fact, the overwhelming
majority of the 9/11 immigration detainees were represented by counsel during
removal proceedings.

Nevertheless, the legal position of the 9/11 immigration detainees bears no
similarity to the status of detainees in Guantanamo Bay who are members of al
Qaeda or the Taliban, and who were detained - usually in battlefield
situations -- overseas. This juxtaposition of the two displays a remarkable
ignorance of the legal difference between military detainees held outside the
borders of the U.S. and immigration detainees held inside our nation.
Furthermore, the detention of illegal enemy combatants in Guantanamo has been
sustained -- both the 9th Circuit and the D.C. Circuit courts have dismissed
legal challenges. The Guantanamo Bay detainees have not been accorded prisoner
of war status because they are illegal enemy combatants who do not fight under
Geneva Convention rules that would merit such treatment. Even lawful POWs have
no right to lawyers to challenge their military detention under international
law. There has never been any time in our entire history when any President
has had a policy of providing lawyers to illegal enemy combatants or even
legal POWs. The article displays a fundamental misunderstanding of military
detention that falls under the President’s Article II war powers, as opposed
to our judiciary system which is under Article III of the Constitution.
Fortunately, the courts -- largely ignored in this piece supposedly exploring
the "legal revolution" -- are more familiar with this historical record.

TIME: “The government justifies this on the grounds that it needs to
question them, but most of the interrogations are over.”

REALITY: False. The government justifies detaining illegal enemy
combatants who were fighting our soldiers in Afghanistan under long-standing
precedent and international laws of war. Detained individuals who fought with
Al Qaeda or the Taliban did not belong to an army that fought wearing uniforms
or under a chain of command, and they intentionally targeted innocent
civilians - women and children. Their detentions are consistent with
long-existing precedents that allow the detention of enemy forces so they
cannot rejoin those fighting against you. The article implies once we get
information out of an al Qaeda operative telling us how they would like to
kill us, the next logical step would be to release them to go carry out such
operations -- or at the least bring in lawyers to facilitate their release.

TIME: “A federal judge in Manhattan has ruled that Padilla must be allowed
to meet with his lawyers in order to challenge his enemy-combatant status. But
the government maintains that no court has the authority to review that
classification. Federal prosecutors have taken a similar position in the case
of Yaser Esam Hamdi, a Louisiana-born man who came into U.S. custody after he
was captured in Afghanistan, allegedly fighting for the Taliban. He has been
declared an enemy combatant as well, held in a Navy prison in Virginia and
prevented from seeing attorneys.”

REALITY: This summary completely ignores the key question under review
by the courts- whether the government can detain enemy combatants in times of
war -- and significantly omits the government’s success on that key issue in
both cases. On the main issue under legal review, both the Fourth Circuit in
the Hamdi case and the District Court in the Padilla case have clearly said
the government has the long-established authority to detain individuals
designated as enemy combatants. While the auxiliary counsel issue continues to
be litigated in the Padilla case following the order of one federal judge that
access to counsel is required, a unanimous Fourth Circuit decision in the
government’s favor on this issue has been public for months in the Hamdi case.

TIME: "On arrival, Joseph petitioned for asylum as a political refugee. An
immigration judge okayed his request, and an appeals board supported the
judge, ruling that Joseph was neither a danger to the community nor a flight
risk."

REALITY: The immigration judge never okayed the alien's asylum
application. The alien was denied bond, and sought a redetermination hearing.
During the hearing, the INS presented declarations from the Coast Guard,
Departments of Defense and State, and INS Headquarters to support its position
that the alien should continue to be detained while the asylum petition was
considered, primarily for national security reasons. The immigration judge
disagreed with the government’s position and ordered Joseph released on a bond
of $2,500. The INS appealed to the Board of Immigration Appeals (BIA), which
dismissed the appeal after finding that they could not consider the broad
national security interests articulated by the INS without a legal opinion
from the Attorney General expressly allowing these concerns to be taken in
account. The Attorney General issued an opinion stating that national security
considerations clearly constitute a reasonable foundation to deny release on
bond.

All this means is that if government lawyers present national security
concerns to immigration judges about an alien who has been apprehended
entering the country illegally, the judges can now consider those concerns in
deciding whether to release the individual on bond or not. To conclude
otherwise--that immigration judges must simply ignore national-security
evidence -- would endanger not only Americans, but also those aliens whose
lives might be placed in jeopardy in the future. Decisions on whether or not
to detain aliens during the adjudication process will continue to be made by
immigration judges.